UPDATE: D.C. Circuit delays latest detainee issue
on Sep 12, 2007 at 2:49 pm
UPDATE 3:58 p.m. Wednesday
The D.C. Circuit Court at mid-afternoon Wednesday suspended an important deadline for the government in the most recent detainees’ case, saying it will take time to decide whether to reconsider en banc an earlier ruling that had led it to impose that deadline. That action could delay the prospect that the controversy would swiftly move on to the Supreme Court.
In the three-paragraph order, issued in Paracha v. Gates (Circuit docket 06-1038), the Circuit Court spared the government from filing on Thursday a full record of information about the status of Saifullah Paracha as a Guantanamo Bay detainee. That order was suspended, and the government was told that it was to file a new index to the record 14 days after the Circuit Court acts upon the rehearing request in Bismullah v. Gates (06-1197) and Parhat v. Gates (06-1397). Once that issue is decided, the order added, the Paracha case will be put on a new briefing and hearing schedule.
The order can be found here.
(The post below was based upon a filing earlier Wednesday by detainees’ counsel in the Bismullah/Parhat cases.)
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With an important deadline for the government in the latest detainees’ case only one day away, lawyers for eight prisoners on Wednesday objected to being shut off from seeing official data that may bear upon the prisoners’ chances of being released from Guantanamo Bay, Cuba. High officials of the Bush Administration last week asked the D.C. Circuit Court to accept two classified statements by top intelligence officers about the detainees’ status, but not to allow detainees’ lawyers or the judges’ own law clerks to have any access. The detainees’ motion opposing denial of access can be found here.
This dispute over access to “Top Secret” declarations by the directors of the Central Intelligence Agency and the National Security Agency may be the final issue the Circuit Court is confronting as it prepares to act on two requests by the Justice Department. With some action probably imminent, the Supreme Court could be drawn into this aspect of detainees’ rights, depending upon how the Circuit Court acts on the Department’s two pleas.
The first and most urgent request is a plea to delay for at least 30 days the Thursday deadline for the government to file a full record of information that it has about the status of one detainee, Saifullah Paracha — the first at Guantanamo to obtain civilian court review of his continued detention. (His case is Paracha v. Gates, 06-1038). The second request is for the Circuit Court to reconsider en banc a Circuit panel decision July 20 imposing a broad obligation on the government to produce a full file of information in all cases like Paracha’s, as other cases develop before other Circuit Court panels. That request came in the combined cases of Bismullah v. Gates (06-1197) and Parhat v. Gates (06-1397); accompanying that request were statements by the entire top rank of government intelligence officers urging the Circuit Court to spare the government from gathering and producing that full record of data. In addition, there were the two Top Secret statements from the chiefs of the CIA and NSA.
The detainees’ lawyers, in their opposition filing Wednesday, argued that two two sealed declarations should noit be allowed at all, and that the Circuit Court should not decide what next step to take based on “secret evidence.” The attempt to file Top Secret statements “at this late date” threatens the eight individuals involved in the Bismullah/Parhat cases “with unfair prejudice” and also confronts the Circuit court “with a one-sided process,” the brief contended.
Had the government filed those statements earlier, the brief said, detainees’ lawyers could have sought upgrades in their security clearances in order to get access, or the government might have been able to supply versions that were not so heavily classified. If such measures were to be taken now, it would only result in “significant delay,” the lawyers said, adding that detainees should not be required to remain longer in Guantanamo captivity because of “the government’s delinquency or litigation strategy.” Thus, “the Top Secret declarations…should not be allowed,” the brief concluded.
Under a prior Circuit Court order, detainees’ lawyers are to be given access to at least some of the classified material that may bear upon their clients’ detention, the brief noted. But, six weeks after that order was issued, the government “has not produced a single classified document.” Moreover, they added, detainees’ lawyers still are not allowed to see the record of the military panel proceeding that decided to continue the detention, even though that record was filed with the Circuit Court “months ago.”
Unclassified versions of intelligence statements by top officials do not contain any information specifically about the status of these eight detainees, the brief said, the Top Secret versions “are the only possible source of evidence that might relate” to those eight individuals. Keeping those away from detainees’ counsel, it added, would “wholly deprive” them “of any idea of the substance of the only evidence that relates specifically to them.”
